The bigger a nursing home chain gets, the more profit may be placed above care, or so it seems when we take a look at the case of Pennsylvania company Genesis Nursing Homes. Genesis was until recently a trusted care facilitator in Massachusetts and elsewhere, but its growth and its standard of care have been markedly at odds in recent years. Having doubled in size in the past four years to become the largest owner of nursing homes in Massachusetts and nationwide, since 2010 almost half of the nursing homes that Genesis owns have seen their ratings by federal regulators decline. An attorney quoted by the Boston Globe says the problems families are reporting, such as pressure sores and broken bones from falls, are typically seen when nursing homes do not have enough staff to monitor and care for residents.

Inspectors described stark conditions in the Twin Oaks nursing home in Danvers: grimy floors and bed linen smelling of urine. Administrators at the Maplewood Center in Amesbury admitted to inspectors that they were so short-staffed that an activities director and an admissions executive fed patients. A resident with a high fever died from an untreated urinary tract infection at a facility in Meadow View Center in North Reading. The administrators agreed to pay a a $56,000 federal fine after the incident.
Confidential nursing home agreements mean that it is not even possible to discuss the cases brought against Genesis and other big nursing homes by residents and their families. With frail and elderly clients, mistakes like feeding someone the wrong food can cost lives.

Nursing homes across the country are being bought and sold at a rapid rate, according to the Boston Globe report, as companies compete to own facilities with higher profit margins or higher-paying patients. Harvard medical school policy experts have found a direct link between standard of nursing homes as reported by inspectors and the amount of time a nursing home was sold within a ten year span. It’s not clear whether this link means that nursing homes that were already below standard and/or have low running costs are more rapidly bought and sold. Either way the Harvard policy experts have urged federal regulators to pay closer attention and have more information available to consumers. At the very least consumers deserve to have reliable sources of information when choosing nursing homes to care for their family members. Family members and residents of nursing homes should expect care to focus on patients’ needs and not the bottom line.

If you or a loved one has been affected by a poor standard of care at a nursing home, please contact the attorneys at Parker Scheer for a free, confidential consultation.

Hygiene issues, adverse consequences of medication, poor judgement – all of these are recognized causes of serious medical errors that can harm patients. However simpler mistakes can often cause damage and go unrecognized as a threat to patient safety.

Patient misidentification was the cause of a serious medical error at Saint Vincent hospital this July when the wrong patient’s kidney was removed based on a scan that belonged to another patient. This case spurred the Boston Globe to request state records on wrong-patient procedure errors. The procedures included the insertion of intravenous catheters, endoscopies, and biopsies. Since 2011, there have been at least 14 wrong-patient procedures in Massachusetts, state records show. The Globe also found that in 10 out of 14 of wrong-patient procedure cases, the cause of errors was the failure to follow simple rules for identifying patients such as obtaining full name and birth date. Many of the patients didn’t speak English.

State investigations were conducted following the incident at Saint Vincent and another serious CT scan error at UMass Memorial. Despite health care safety experts’ reassurance that wrong-patient procedures are rare, these investigations showed that the patient identification errors that can lead to them are not. The investigations at both hospitals turned up underlying patient identification errors. At UMass Memorial a patient was diagnosed with cancer based on patient misidentification. Inspectors investigating the incident at the hospital found that even after the mistake was identified, test-results for the two patients were still mixed up. The investigation also found other errors.
That these errors are often discovered before a mistake happens is no excuse for not following procedure, according to Dr. Eric Dickson, president of UMass Memorial Health Centre, who cautions “If you fail to follow the procedures it’s only a matter of time before a mistake will occur.’’

Wrong-patient procedures are serious mistakes, and can lead to death. The shock of losing a perfectly healthy kidney is something few can imagine. Data from states with mandatory reporting laws seem to demonstrate that wrong-patient procedures happen 40-60 times a week. However medication errors are far more common than wrong-patient procedures, as medication is prescribed more than procedures are carried out, raising the odds. In one study, despite the fact that all wrong-patient medication errors were caught, the volume of incorrect orders that were placed was enormous: 5,246 wrong-patient electronic medication orders in on year at Montefiore Medical Center in New York City according to a 2013 study.

It’s clear that patient misidentification breeds ample opportunities for patient harm through simple errors, whether because of medication or unnecessary procedures. If you or a loved one has been harmed in a wrong-patient procedure or through incorrect medication caused by misidentification please contact the attorneys at Parker Scheer for a free and confidential consultation.

Massachusetts Attorney General Maura Healy’s investigation of safety issues with firearms manufactured by Glock made headway when a Suffolk Superior Court judge on Friday denied Glock’s attempt to avoid complying with a demand for records by AG Maura Healey.

Since guns are not defined as consumer products, they are exempt from regulation by any federal authority governing defective products. The ATF (Bureau of Alcohol and Tobacco) has no authority to force product recalls. (http://www.bna.com/gun-defects-no-n57982069629/)

Healey’s request of the documents was made under a civil investigative demand as part of an investigation of safety concerns involving firearms manufacturers Glock and Remington. Massachusetts has laws relating to public safety, despite the fact that guns are not subject to a federal authority. Judge Edward P. Leibensperger ruled that the Supreme Judicial Court has already established in favor of the Attorney General’s authority “to prevent the deceptive or unfair sale or transfer of defective products which do not perform as warranted.”

AG Healey’s office cited incidents involving Glock pistols, including one in which a Glock handgun fired in the pocket of a Massachusetts man who was dancing at a July Fourth party.
Glock has argued that it only sells guns to police and the military not consumers, but a database of gun sales between 2014 and 2015 appeared to show that 8,000 of Clock handgun sales in Massachusetts were not to people in law enforcement.

Judge Leibensperger said Healey “has good and sufficient grounds” to ask Glock to hand over the records based on safety and other concerns.

The attorneys at Parker Scheer have significant experience in product liability cases. If you or a loved one has been injured by a defective product please contact us today for a free consultation.

For more on this story, please click on the link to read the Boston Globe article.

A new delay has arrived to block September’s rule preventing nursing home and long-term care facilities from imposing forced arbitration on new residents. The rule issued by the federal Centers for Medicare & Medicaid Services (CMS) trades arbitration clauses for Medicare and Medicaid. If a facility wants to accept Medicare or Medicaid they would be prevented from putting forced arbitration clauses in new residential agreements.

The American Health Care Association (an industry trade group) and others sought a preliminary injunction which would bar the government from enforcing the rule pending a review of the merits of the case. As The Consumerist notes there was irony in the fact that the AHCA availed of a lawsuit to obtain a delay. Additionally, Judge Michael Mills’ comments in his order granting the preliminary injunction were probably not the publicity the industry would have hoped for.
Judge Michael Mills challenged the industry on several counts, but most strenuously on the mental competence of vulnerable nursing home residents to sign the contracts represented by arbitration agreements.

“There is no more basic defense to the validity of a contract than lack of mental competency”, Judge Michael Mills said. The Judge cited figures from the National Health Center for Health Statistics that 50.4% of nursing home residents have been diagnosed with Alzheimer’s or other dementias, which is often the reason why their families are seeking more permanent care for them. In response to the AHCA’s protest that courts do invalidate arbitration agreements signed by parties who are deemed to be mentally incompetent, Judge Mills was pessimistic: “Many nursing homes will obtain signatures from residents in spite of grave doubts about their mental competency, or, more often, they will choose to have relatives of the residents sign the agreements, even when no power of attorney has been executed.” “This court has repeatedly seen these facts play out in its courtroom, and it has seen these fact patterns repeatedly arise in published decisions from other Mississippi courts.”

The Judge also questioned the industry’s arguments in favor of arbitration’s efficiency. When issues of mental competency arise nursing homes may file motions to compel arbitration, which in itself is time consuming and may result in further battles. With such large numbers of elderly people vulnerable to signing their rights away, it’s clear that arbitration is a far from ideal instrument for resolving abuse. Many nursing home residents are vulnerable to abuse, and arbitration blocks them not only from their day in court, but also from their right to challenge systematic abuse with class actions.

Nursing home residents and their families shouldn’t face obstacles to challenging systematic or individual cases of abuse. The possibility of abuse should be taken seriously when so many people in long-term care facilities are vulnerable and may suffer from fading mental competency and physical weakness.

If you or a loved one has been affected by nursing home abuse please call Parker Scheer for a free and confidential consultation.

On October 15th, an emergency order took effect banning Samsung Galaxy Note 7 smartphones on airline flights. The phones have been banned in checked bags, carry-on bags and have also been banned as shipped air cargo.

The emergency order was issued after Samsung’s phone, which was released in August, repeatedly caused problems due to overheating batteries. The product’s flaw was one that has affected not only devices and laptops but also Tesla cars and Boeing’s 787 jetliner. Overheating lithium-ion batteries are the reason that e-cigarettes and hoverboards can’t be brought on plane, and why there have been recalls of products like hoverboards, and most recently Samsung’s flagship phone.

Just recently, a family whose million dollar house burned down after a hoverboard caught fire sued Amazon when they couldn’t track down the maker of the product (under Tennessee Law they were entitled to do so). The family bought the hoverboard in January 2016 after reports of fires in 2015. The family reportedly felt more comfortable buying the product as it contained Samsung batteries, which hadn’t been flagged as unsafe until the Note 7 drew attention to them in August this year.

Smartphones typically have a single cell, but other larger products can have many. Even NASA isn’t immune from the dangers of lithium-ion batteries: NASA’s robotic rescuer Robo-Simian exploded dramatically in a recent accident that fortunately didn’t cause injury. Because lithium batteries are lightweight and take a long time to lose their charge they are ideal for sending spacecraft on long missions, and also for shipping in bulk by manufacturers. Due to the number of cells in the robot’s battery, the NASA explosion was larger than a small fire caused by an overheating cellphone. Accidents can be caused when the current that flows across the highly flammable liquid electrolyte between the positive and negative side of the battery hits an excess of max voltage causing the battery to fail and sometimes explode. However even though the NASA battery wasn’t overcharged and was being monitored, it still failed. Early analysis indicates that one cell in the battery was damaged, which sent misleading information to the monitoring equipment causing the cells to become overcharged. NASA’s flight testing is rigorous, and an expert has suggested that this robot may not have been subjected to as stringent testing because it wasn’t built to fly. The volatility of lithium-ion batteries in everyday products show that these products may not be being handled correctly at the manufacturing stage, or that we don’t yet comprehend their potential risks. For example, even after a mass recall of the Note 7 in September, a Galaxy Note 7 device deemed “safe” by a Samsung fix reportedly caught fire on a Southwest Airlines plane. The New York Times recently drew attention to Samsung’s safety issues in numerous other areas of product safety and their opaque response to customer complaints.

When lithium-ion accidents do happen, injuries can be devastating and cause damage beyond burns. In exploding e-cigarette cases, injuries not only include burns, but also chemical burns and blast injuries. Recently, a laptop battery fire was reported to have caused chemical burns. Lithium-ion accidents can cause life-threatening or disfiguring injuries, either through explosion, chemical burns or fires started by overheating devices. If you or a loved one has been injured in a lithium-ion battery incident, please call the attorneys at Parker Scheer to receive a consultation.

In February 2016, a manhole cover killed Caitlin Clavette. A 250-pound manhole cover dislodged and hit Clavette’s windshield as she was driving on I-93 in Boston. Clavette was a 35-year-old art teacher from Arlington. Governor Charlie Baker called the experience “unbelievably random and incredibly unusual.” In response to the incident, state highway inspectors examined more than 900 manhole covers, drainage gates and electrical panels. The Massachusetts Department of Transportation (MassDOT) inspectors spent 22 hours inspecting covers and grates along I-93’s travel lanes. The inspection spanned from Somerville to Boston. They also inspected inside the tunnels that comprise the city’s highway system.

Crews inspected 919 structures in a variety of ways. They looked at them, drove over them and struck them with tools. On 854 structures, no action was needed. At 65 sites, inspectors performed “cautionary maintenance” and welded manhole covers.

Baker and officials reported that they did not find anything to indicate a larger problem. “The inspections found nothing to indicate a threat to public safety, rose to the level of alarming or indicated that any of the structures inspected would be insecure,” MassDOT Highway Administrator Thomas Tinlin said.

MassDOT, state police and the Suffolk County District Attorney’s office have continued their investigation of the cause of the accident. However, Massachusetts will not inspect manhole covers outside of the Boston area. Baker said that the state follows federal highway standards in inspecting all manhole covers. Covers must be inspected every two years; the cover that killed Clavette was last inspected in June 2014. Baker continued by saying, “The real issue is just the enormous randomness of the tragedy.”

Wrongful death cases occur all the time. Unsuspecting people and innocent victims are killed from falling debris, unsafe roadways and unforeseen incidents that can happen at any time. If this does happen, it is best for the victim’s family to seek legal counsel immediately to help in the process, especially with any follow-up in regard to what caused the death and who was at fault. In many cases, a corporation or government institution has not followed laws or protocol and this neglect leads to unnecessary and tragic death.

Parker | Scheer LLP has experienced wrongful death lawyers within its firm. A wrongful death lawsuit is often traumatic and complex, and requires a knowledgeable and respectful legal team. We seek to find the cause of the death and ensure that your family is compensated. Please contact a Boston wrongful death attorney at Parker | Scheer LLP today for a free, confidential consultation.

At state nursing homes, safety problems are on the rise, and in response, the Massachusetts government intends to execute a new plan that calls for strict regulations. They include: tougher licensing reviews for new nursing homes, stringent enforcement of fines and surprise inspections. This plan comes amidst thousands of complaints. For example, in 2015, the state received almost 11,000 complaints of nursing home neglect and abuse that involved its 400 nursing homes and 40,000 nursing home residents. The state is trying to address the complaint backlog from the previous year.

The new plan recommends the creation of SPOT or Supportive Planning and Operations Team. It would make surprise inspections to state facilities and execute a re-training program for staff and management at the most troubled nursing homes. Massachusetts intends to pay for SPOT, which is a one-year experiment, by enforcing and possibly increasing fines for those who do not comply with nursing home regulations. As of press time, the state is allowed to fine facilities that are in violation of up to $50 per day; however, it is a practice that is rarely enforced. In March 2016, the enforcement of fines will be stricter. The state budget for 2016 will enable two new hires for inspectors.

The state also proposes the creation of a new online system, where consumers can easily file complaints and research information on state nursing homes. Massachusetts would more closely review new nursing home licenses, as well as the sales and closures of existing facilities. It would carefully examine the criminal and financial backgrounds of potential new nursing home operators and management companies.

In regard to federal guidelines, federal sanctions can be upwards of $10,000 per day for nursing homes that are not in compliance. According to the US Department of Health & Human Services’ Office of Inspector General (DHHS-OIG), “about a quarter of all US nursing home residents experience adverse events and that about 11 percent are harmed by mistakes, most of which are preventable.” This brings to light the amending of nursing home practices in Massachusetts, especially in regard to illegal activities such as elder abuse and fraud.

Parker | Scheer LLP has experienced nursing home abuse lawyers within its firm. Elder abuse and fraud are serious crimes that can do physical and emotional damage to both the victim and her/his family. Therefore, we will seek compensation for the victim’s pain and suffering and loss of finances. Please contact a Boston nursing home abuse lawyer at Parker | Scheer LLP today for a free and confidential consultation.

The opening of a small museum in the sleepy town of Winstead Connecticut wouldn’t normally draw the attention of the New Yorker, NPR and Politico. But when this museum marks the reappearance of Ralph Nader, a man who has been a fierce consumer advocate for years, a well-known public figure, and even would-be Commander-in- chief, attention isn’t in short supply.

As Personal Injury Lawyers we might also venture to say it’s about time. Ralph Nader’s American Museum of Tort Law is designed as an educational tool that redeems Personal Injury Law as an exercise that holds the powers-that-be accountable. More remarkably, this humble monument to Tort Law that took Nader 18 years to fund from its conception in 1998 isn’t just any old pet project, it’s the first museum dedicated to Law in the United States in history. As Nader himself says ruefully, “There are thirty-five thousand museums in the United States and not one museum dedicated to law. There are timber and lumber museums.”

Using engaging pop-art illustrations, the Museum changes that by telling the story of Personal Injury Law. It’s clear from Nader’s own career – Unsafe at Any Speed, his popular 1965 book targeting GM’s poor safety record to change auto-safety for the better – that over time Tort Law has forced companies to protect consumers and the environment above their own profits. The recent Peanut Corporation of America ruling [link] shows that profits will always powerfully influence decision-makers to overrule safety concerns, to the point of recklessness and real-world harm.

The Museum takes on Personal Injury Law’s unpopular image of the 90s amongst other topics. An exhibit about the infamous Macdonald’s Coffee Case [link to Parker Scheer article] carefully unpicks the myths about that case and reveals the facts: that the coffee was super-heated to give Macdonald’s a commercial edge on Burger King, that Macdonald’s knew of its potential for injury, that it only took a few seconds for the coffee to inflict serious burns.

Growing up in Winstead Connecticut, one of the first Mill towns in Connecticut, where his father worked first at a mill, then as a baker, Ralph Nader was implanted with a consciousness of everyday working conditions through his father and others he knew. Nader’s museum is a reminder that his career isn’t just an example of his unique activism, but owes a lot to his profession. The Museum presents Tort Law as a way to hold powerful corporate interests to account, and to make the world a safer place for ordinary people.

A Massachusetts federal court recently discussed the specifics of what constitutes an injury that arises out of and that is in the course of one’s employment, distinguishing the types of cases that may or may not be barred by the exclusivity provision of the Massachusetts Workers’ Compensation Act. The case examines the right to sue an employer when an employee is considered to be on a personal venture at work, and the conditions under which the employee may be able to hold her employer liable for injuries sustained on work premises.

In Delvin v. Aramark Healthcare Support Services, LLC and Tufts Medical Center, Inc., the plaintiff was employed by Tufts Medical Center (Tufts), and also gave birth to a child prematurely that remained in Tufts’ Neonatal Intensive Care Unit (NICU) for several months. The plaintiff returned to work following the birth of her child, and made arrangements with her manager to use various break times to pump milk for and visit with her newborn in the Tufts facility. She would begin her day early and stay later to compensate for the time she took during those breaks. During one of the breaks, the plaintiff slipped on a wet floor in the NICU and was injured.

The plaintiff sued the Tufts and Aramark Healthcare Support Services, the company responsible for cleaning the NICU floors, arguing that the defendants were negligent in failing to safely maintain the facilities. Tufts sought summary judgment, arguing that the plaintiff’s claim was barred by the exclusivity provision of the Massachusetts Workers’ Compensation Act (WCA). In relevant part, the WCA provides the exclusive remedy for an employee who suffers a personal injury “arising out of” and “in the course of” her employment. At issue was whether the plaintiff’s injuries were sufficiently work-related to trigger the WCA provision, thereby prohibiting the plaintiff from pursing her claim against Tufts.

The court explained that generally, the phrase “in the course of” refers “mainly to the time, place, and circumstances of the injury in relation to the employment,” whereas “arising out of” refers to “the causal origin.” In essence, the basic question is, in a common-sense view of all of the circumstances, whether the injury is connected to the employee’s work.

The court ruled that the mere fact that the plaintiff sustained an injury while on her employer’s premises is not enough to trigger the WCA exclusivity provision. The court found that if an employee is injured on the employer’s premises while engaging in a purely personal activity, the injury will not be considered to arise out of the employment. Here, the plaintiff was engaged in a strictly personal activity at the time of her fall, which occurred during an unpaid break. She did not work in the NICU, nor was she performing any of her work-related duties when she fell. Moreover, her presence in the NICU at the time of her fall was not for any reason connected to her employment elsewhere in the hospital; rather, the purpose of her presence in the NICU was to visit her hospitalized child, on personal time, irrespective of her place of employment.

The court denied Tufts’s motion for summary judgment, finding that the circumstances did not make the plaintiff’s injuries compensable under the WCA, and therefore did not trigger the exclusivity provision of the statute. Thus, under these unique facts, the plaintiff was permitted to proceed with her suit against her employer.

When a plaintiff’s medical malpractice case was dismissed following a medical malpractice tribunal’s conclusion that her offer of proof was “not sufficient to raise a legitimate question of liability appropriate for judicial inquiry,” the plaintiff appealed. The Massachusetts Appeals Court vacated the dismissal, finding that the plaintiff’s proffered evidence, though disputed by the defendant surgeon, was sufficient for a jury’s consideration.

In Abrea-Riley v. Lerner, the 44-year-old plaintiff presented to her gynecologist complaining of chronic pelvic pain. Her doctor recommended an operative laparoscopy to evaluate the pelvis, to possibly free up scar tissue and to potentially remove the plaintiff’s ovaries. The plaintiff provided informed consent to the recommended procedure.

However, instead of the planned procedure, the defendant surgeon performed a diagnostic laparoscopy, and then a second laparoscopy, where he performed a lysis of bowel adhesions and an ovarian cyst resection. As a result, the plaintiff suffered severe abdominal pain and presented to the hospital two days following the surgery. The defendant surgeons performed an emergency laparotomy after finding a hole in the plaintiff’s small bowel, next to the area they had operated on two days prior. The plaintiff was hospitalized a number of times thereafter, and continued to suffer from abdominal and pelvic pain.

Through expert opinion, the plaintiff alleged that the surgeon deviated from the standard of care in two ways: first, by failing to treat the issues as originally planned, and second, by failing to recognize the bowel injuries they caused during the second laparoscopy. The defendants contended that they exercised great care, and that the bowel perforation could not have been identified at the time of the surgery.

The medical malpractice tribunal agreed with the defendants, but the Appeals Court did not. Noting that the medical malpractice tribunal’s role is to evaluate the sufficiency of a plaintiff’s offer of proof – in the light most favorable to the plaintiff – the Appeals Court found that there was a legitimate dispute of the material facts of the case on which a verdict could turn. For that reason, the decision as to the sufficiency of the plaintiff’s proffer should weigh in the plaintiff’s favor, leaving the issue of negligence to a jury to determine in consideration of all of the evidence. Because it found that the plaintiff had met that evidentiary threshold at the medical malpractice tribunal, the Appeals Court vacated the dismissal of the case, allowing the lawsuit to proceed.

This case demonstrates the importance of presenting competent evidence early on in a medical malpractice case that is sufficient to meet the plaintiff’s early burden before a medical malpractice tribunal. Notwithstanding, a tribunal must take care in its consideration of evidence in such cases, so as not to improperly remove the ultimate issue of medical negligence from the hands of a jury.